Stewart v. Davis

Decision Date28 November 1990
Docket NumberNo. 07-CA-59127,07-CA-59127
Citation571 So.2d 926
PartiesKenneth STEWART v. John L. DAVIS and Cliff Rogers.
CourtMississippi Supreme Court

Robert S. Murphree, Jackson, for appellant.

William M. Dalehite, Jr., Philip W. Gaines, Steen Reynolds Dalehite & Currie, Jackson, for appellee.


ROBERTSON, Justice, for the court:


The core question in this personal injury action is how we may know whether a road is a public way such that the traveling public may of right use it or, in contrast, whether it is merely a private driveway. What turns on the point is whether the particular road's conjunction with U.S. Highway 98 is in law an intersection such that the law imposes upon approaching motorists certain duties. Beyond that there is the question whether the jury's verdict favoring the defendant truck driver is within the evidence. For the reasons presently presented, we affirm.


In the early morning hours on November 13, 1984--at about 4:45 a.m.--with sunrise well over an hour away, John L. Davis, age 19, was driving an eighteen wheeler laden with 113 head of cattle in a westerly direction on Highway 98 some three miles west of Tylertown in Walthall County, Mississippi. The night was clear, the road straight, and there were no obstructions to vision. Davis saw a slower moving automobile ahead of him also traveling west, and he pulled out to pass when suddenly the car ahead, driven by Kenneth Stewart, also 19, turned left/south in front of Davis, and Davis' truck struck the left rear side of Stewart's car. Stewart had made no left turn signal and acknowledges that the automatic directional signal on his car was inoperative. Davis, who at the time was acting on behalf of his employer, Cliff Rogers, simply says he had no earthly idea the car ahead was about to turn left in front of him.

At the point in question Highway 98 is an east-west, two-lane road approximately 22 feet wide. The highway is straight and flat and is asphalt surfaced. The center of the road is marked by a single line of painted yellow dashes in the manner familiar to Mississippi's motorists. From the south, a road joins the highway. The road's surface is a blend of old "blacktop," gravel and dirt. The witnesses call it Old Mesa Road and it forms a T conjunction with Highway 98.

The road leads southerly from Highway 98 to an old sawmill witnesses call the Pallet Plant and then swings around to the left/east and meets another road which runs in front of the United Electric Assembly Plant. Further to the east the road intersects a more substantial north/south Industrial Park Drive upon which one could turn left and head north and shortly return to Highway 98. A motorist approaching from the east destined for the United Electric Plant could easily accomplish his journey by turning left on Industrial Park Road and then right into the plant entranceway.

Our central motion surrounds the legal status of Old Mesa Road. No stop sign appears in the southeast quadrant of its conjunction with Highway 98, although the highway is clearly the dominant way. Our motorists are accustomed to seeing diamond-shaped yellow signs with a black sideways "T" as they approach intersections and, as well, they have come to expect solid yellow "no passing" lines for a certain distance either side of an intersection. No such "T" sign nor yellow lines appeared as one approached Old Mesa Road on November 13, 1984, nor was there any blinking yellow or red traffic light. Public road maintenance authorities had, however, placed on the right hand or northern side of Highway 98, approximately half-way between Industrial Drive and Old Mesa Road, a diamond shaped yellow-backed road sign containing the words "Plant Entrance."

No evidence reflects the legal status of either way--Highway 98 or Old Mesa Road--although there can be no doubt that Highway 98 may be traveled by the public as of right. Old Mesa Road is quite another matter as we will note below.

In the darkness of the early morning hours of November 13, plaintiff Stewart was on his way to work at the United Electric Assembly Plant. As he approached from the east, he could have turned left/south on Industrial Park Drive but chose not to. He proceeded a bit further westerly and turned onto Old Mesa Road and was struck in the rear by Davis' truck. As noted, Stewart concedes he gave no left turn signal and says he simply did not see Davis approaching from his rear, and whether this was due to inattention or the fact that Davis' truck had already pulled out to pass and was in the "blind spot" we may never know. Stewart says his brake lights were working. Davis says he never saw any brake lights go on and, in view of the jury's verdict, we, of course, must resolve all factual conflicts in Davis' favor.

In any event, Stewart suffered personal injuries in the accident and on August 13, 1985, brought a civil action in the Circuit Court of Walthall County, Mississippi, charging Davis with negligence and alleging further that Davis' employer, Cliff Rogers, who is based in Centreville, Mississippi, was vicariously liable for the damages Stewart suffered. The matter proceeded with deliberate speed. At trial a central issue was whether the Court should instruct the jury in Stewart's favor that Davis was illegally passing at an intersection and thus was negligent as a matter of law. The Circuit Court denied the instruction on the grounds that Old Mesa Road was a private driveway, in consequence of which its conjunction with Highway 98 was not an "intersection" giving rise to the rules Stewart pleaded. In the end, the case was submitted to the jury which found for Davis and, of course, for Rogers.

Stewart now appeals to this Court.


Stewart argues that the Circuit Court erred when it refused to instruct the jury that the accident occurred within what in law is an "intersection" and that Davis was in violation of law by attempting to pass within 100 feet of the intersection. Stewart relies upon the legislative declaration that

... no vehicle shall in overtaking and passing another vehicle or at any other time, be driven on the left side of the roadway under the following conditions: ...

(c) When approaching within 100 feet of or traversing an intersection....

Miss.Code Ann. Sec. 63-3-611(2) (1972). If the conjunction of Old Mesa Road and Highway 98 is an "intersection," Stewart is right. Stewart hangs his hat on the "Plant Entrance" sign. He says the sign's presence makes the conjunction of Highway 98 and Old Mesa Road an "intersection." He is off the mark.

Whether this conjunction is an intersection brings us to another statutory definition. An "intersection" requires the conjunction of "two highways," Miss.Code Ann. Sec. 63-3-129 (1972), and is

... the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular traffic.

Miss.Code Ann. Sec. 63-3-125(a) (1972) [emphasis supplied]. By way of contrast, a mere "driveway" has been defined as

... every way or place in private ownership and used for vehicular traffic by the owner and those having express or implied permission from the owner but not by other persons.

Miss.Code Ann. Sec. 63-3-125(e) (1972).

At trial Stewart sought to expand the rule via a reverse spin on language in Gore v. Patrick, 246 Miss. 715, 150 So.2d 169 (1963).

We are of the opinion that an intersection that is not marked by signs and which would not be observed by a reasonably careful operator of a motor vehicle is not an intersection within the meaning of the statute.

150 So.2d at 171; see also, Rayborn v. Freeman, 209 So.2d 193, 199 (Miss.1968). All of this may be so, but a moment's thought makes clear that the converse is not. The fact the conjunction of Old Mesa Road and Highway 98 may have been marked by a "Plant Entrance" sign does not make it an "intersection" unless Sections 63-3-125(a), 63-3-129, and 63-3-611(2)(c) have been satisfied, and the same of the fact that the conjunction may have been observable by a reasonably careful operator. In reality we know that we confront an either/or. Either Old Mesa Road was a "highway" on November 13, 1985, or it was not. It could not have been both, nor in reality could there be doubt which it was. Every lawsuit contains such either/or's, and we have trials because our abilities to perceive reality are less than perfect, nor do we always agree what we see.

Plaintiff Stewart, of course, had the burden of establishing that Old Mesa Road was a "highway." Stewart was the party who sought to rely on that fact as an element of his claim and thus bore the burden of producing evidence that Old Mesa Road was a public way and of persuading the trier of fact that he was correct in this. See Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361 (1954). This is a function of the universal view that in a civil action the party asserting a claim bears the burden with respect to each element of his claim. See, e.g., R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1020 (Miss.1990); Matter of Estate of Ford, 552 So.2d 1065, 1067 (Miss.1989).

The Circuit Court decided that Old Mesa Road was a private driveway and has presented us another basic: that the Court may make this decision and take it from the jury only where the evidence is so clear that, having in mind the applicable burden of proof, reasonable minds could not differ. See, e.g., Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986).

Without question there are many roads in this state no one would doubt are open to the public as of right. Such roads are "highways" within the statute, and the point is so clear that it may be judicially noted. See Rule 201 Miss.R.Ev.; Enroth v. Memorial Hospital at Gulfport, 566 So.2d 202 (Miss.1990). For example, that Highway 98 is a "highway" is within any court's judicial knowledge and the same for many...

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